RECENT DECISION
Constitutional Law -- The Fifteenth Amendment and Congressional Enforcement -- Interpreting
the Voting Rights Act to Render All Political Subdivisions Eligible for Bailout Rather Than
Deciding the Act’s Constitutionality
I. FACTS
In 1987, Northwest Austin Municipal Utility District Number One was created in order to
provide services to residents of Travis County, Texas.1 The district was governed by an elected
board; however, the district did not register its voters.2 Recently, the district sought to change its
election procedures.3 Since the district was located in Texas, section 5 of the Voting Rights Act
mandated that the district obtain federal preclearance for these changes or, alternatively, that the
district circumvent the preclearance requirement under the section 4 bailout provision.4 Pursuant
to the Voting Rights Act, the district filed suit in the district court for the District of Columbia
against the Attorney General.5
In its complaint, the district sought relief under the section 4 bailout provision.6 In the
alternative, the district argued that if it was denied relief under the bailout provision then section
5 and its preclearance requirement was unconstitutional.7 Ultimately, the district court rejected
both claims.8 The court concluded that the Texas district was not a “State or political
subdivision” eligible for bailout as defined by the Voting Rights Act. 9 The court also concluded
that section 5 was constitutional.10
The Texas district appealed both rulings.11 The United States Supreme Court noted
probable jurisdiction and held: reversed.12 Where an entity seeks bailout under the Voting
1
Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2510 (2009).
Id. The district is still responsible for running its own elections, but for administrative reasons, the county
conducts them. Id.
3
See id.
4
Id. at 2508, 2510. “This is required even though there has never been any evidence of racial discrimination in
voting in the district.” Id. at 2508.
5
Id.
6
Id. The majority disagreed with Justice Thomas over what relief the district sought under the bailout provision. Id.
at 2513. The majority, looking at the appellant’s brief, defined the relief sought as a “judgment that the district is
entitled to use the bailout procedure.” Id. In his separate opinion, Justice Thomas, looking at the plaintiff’s first
amended complaint, defined the relief sought as a declaration that the district had met the bailout requirements;
therefore, preclearance no longer applied to it. Id. at 2517 (Thomas, J., concurring in part and dissenting in part).
7
Id. at 2510 (majority opinion).
8
Id.
9
Id. While the Voting Rights Act permitted any “State or political subdivision” to seek bailout, the Act included its
own statutory definition of “political subdivision.” Id. Looking at this definition, the district court “concluded that
the [Texas] district was not a political subdivision because that term includes only ‘counties, parishes, and voterregistering subunits.’” Id.
10
Id.
11
See id. The case was not heard by the Court of Appeals for the D.C. Circuit.
2
28
Rights Act, “all political subdivisions—not only those described in [section] 14(c)(2)—are
eligible to file a bailout suit.”13 Ultimately, the Court declined to address the constitutionality of
section 5 based on the principal of constitutional avoidance.14
II. RELATED LAW
The Fifteenth Amendment was ratified in the wake of the Civil War.15 The amendment
declared that “[t]he right of citizens . . . to vote shall not be denied or abridged . . . by any State
on account of race, color, or previous condition of servitude.”16 Congress was granted the power
to enforce this mandate by “appropriate legislation.”17 However, for almost one hundred years,
Congress failed to protect the rights of the newly enfranchised black race.18 The situation
worsened to the point where Congress needed a powerful response in order to legitimize the
Fifteenth Amendment.19 In 1965, Congress made such a response by passing the Voting Rights
Act.20
A. The Voting Rights Act of 1965
The Voting Rights Act of 1965 expressly prohibited any “voting qualification . . .
standard, practice, or procedure . . . imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgment of the right of any citizen of the United States to
vote on account of race or color.”21 Accompanying this prohibition, the Act created a variety of
stringent remedies in order to address the blatant disenfranchisement occurring in certain parts of
the United States.22 Accordingly, the Act imposed harsher restrictions on jurisdictions with the
worst track records.23 Some of these harsher restrictions were codified in the section 5
preclearance requirement.24
12
Id. at 2507. Chief Justice Roberts delivered the opinion of the Court. Id. He was joined by Justices Stevens,
Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito. Id. Additionally, Justice Thomas filed an opinion concurring
in part and dissenting in part.
13
Id. at 2516.
14
Id. at 2513.
15
U.S. CONST. amend. XV. The Fifteenth Amendment was enacted in 1870. Id.
16
U.S. CONST. amend. XV, § 1.
17
U.S. CONST. amend. XV, § 2. The section placed no other restrictions on congressional enforcement. Id.
18
Nw. Austin, 129 S. Ct. at 2508. Following the enactment of the Fifteenth Amendment, Congress passed the
Enforcement Act of 1870. South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966). The Act criminalized voter
obstruction; however, “enforcement of the laws became spotty and ineffective, and most of [the Act’s] provisions
were repealed in 1894.” Id. Afterwards, Congress sought to address problems on a case-by-case litigation basis, but
this approach also failed. Id. at 313-14. The litigation process was slow and burdensome, sometimes requiring as
many as six thousand man-hours of preparation. Id. Further, even when court orders were obtained, offenders
would often respond by implementing more difficult tests, switching to new discriminatory devices, or simply
ignoring the orders. Id. at 316.
19
Id. at 309. First, “Congress felt itself confronted by an insidious and pervasive evil which had been perpetrated in
certain parts of our country through unremitting and ingenious defiance of the Constitution.” Id. Second, “Congress
concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner
and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment.” Id.
20
See id.
21
42 U.S.C. § 1973(a) (2008).
22
Katzenbach, 383 U.S. at 310. For example, section 4(a) suspended literacy tests and similar voting qualifications.
Id. at 319. Additionally, the Act instituted strict procedures accompanied by broad federal review. Id. at 335-37.
23
Id. at 317. These jurisdictions were determined by a coverage formula set out in the Act. Id. For a state or
separate political subdivision to be covered, two findings had to be made. Id. First, the jurisdiction maintained a
29
B. Surviving Constitutional Challenge
Despite being backed by overwhelming congressional support, the Voting Rights Act
quickly came under heavy constitutional fire.25 Within a year of its enactment, South Carolina,
backed by five covered states,26 sought to invalidate the Act in South Carolina v. Katzenbach.27
Thus, the Supreme Court had to decide whether these newly designed provisions operated as a
constitutional enforcement of the Fifteenth Amendment.28
In its opinion, the Court declared that the constitutionality of the Act “must be judged
with reference to the historical experience which it reflects.”29 The Court went on to describe
this historical guidepost as one marked by years of rampant voter discrimination.30 With this
guidepost in mind, the Court held that the Act’s remedies, including the section 5 preclearance
requirement, were “an appropriate means for carrying out Congress’ constitutional
responsibilities and [were] consonant with all other provisions of the Constitution.”31 Further,
the Court recognized that “exceptional conditions can justify legislative measures not otherwise
appropriate.”32
Justice Black dissented in part, believing that the broad coverage of section 5 rendered it
The majority acknowledged that section 5 went beyond Fifteenth
unconstitutional.33
Amendment prohibition; however, it believed the section 4 bailout provision provided an
adequate escape from potential inequities.34
discriminatory “test or device” on November 1, 1964. Second, “less than 50% of [the jurisdiction’s] voting age
residents were registered on November 1, 1964, or voted in the presidential election of November 1964.” Id. (citing
Voting Rights Act § 4).
24
Id. at 315-16. Preclearance requires that, within covered jurisdictions, all changes in state election procedures be
approved by a federal court. 42 U.S.C. § 1973(a) (2008).
25
See Katzenbach, 383 U.S. at 307-08.
26
Id. at 307, n.2. Alabama, Georgia, Louisiana, Mississippi, and Virginia supported South Carolina. Id.
27
Id. at 307. In its complaint, South Carolina sought an injunction against the enforcement of certain provisions in
the Act. Id.
28
See id. at 308-09.
29
Id. at 308.
30
Id. The Court acknowledged the previous failed attempts at enforcement. Id; see also supra note 17 and
accompanying text. The Court also highlighted the rampant use of disenfranchisement devices in states covered by
the Act. Katzenbach, 383 U.S. at 309-13. These included literacy tests, grandfather clauses, property qualifications,
poll taxes, intimidation, and outright violence. Id.
31
Id. at 308.
32
Id. at 334 (citing Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934)). The Court went on to note that
given the lack of compliance with federal court decrees, Congress had reason to believe that jurisdictions would
continue their evasive techniques in the future; thus, under these unique circumstances, a complete ban on
preclearance election changes was justified. Id. at 335.
33
Id. at 357-60 (Black, J., concurring in part and dissenting in part). Overall, Justice Black expressed concerns over
the Act’s significant federalism costs. Id. at 359-60.
34
Id. at 330-31 (majority opinion). To bailout, a covered jurisdiction has to fulfill extensive requirements. See 42
U.S.C. § 1973b(a)(1)(A)-(E) (2008). Only seventeen out of twelve thousand eligible jurisdictions have successfully
bailed out since 1982. DEP’T OF COMMERCE, BUREAU OF CENSUS, 2002 CENSUS OF GOVERNMENTS, Vol. 1, No. 1,
pp. 1, 22-60.
30
While originally intended to be a temporary solution, Congress has reauthorized the Act
several times with each previous enactment withstanding constitutional scrutiny.35 The most
recent extension in 2006 was challenged in Northwest Austin.36
C. What Exactly Is A Political Subdivision?
Section 4(b) of the Voting Rights Act permits a “State or political subdivision” to petition
for bailout.37 Section 14(c)(2) goes on to define the term “political subdivision” as “any county
or parish, except that where registration for voting is not conducted under the supervision of a
county or parish.”38 Further, the term also includes “any other subdivision of the State which
conducts registration for voting.”39 Notably, the Act does not place any section-specific
applications.40 Traditionally, statutory definitions govern the meaning of terms used within a
statute. However, exceptions to this general rule do exist, and thus statutory definitions are not
absolute.41
In fact, a line of cases illustrates that the term “political subdivision” has deviated from
its statutory definition. In United States v. Board of Commissioners of Sheffield, Alabama, the
city argued that it was exempt from the section 5 preclearance requirement because it did not
register its voters and therefore did not meet the statutory definition of a political subdivision.42
The Court rejected this argument, concluding that the statutory definition was intended to apply
only to the process of selecting covered jurisdictions.43 This decision clearly stretched the term
beyond its statutory definition. Soon thereafter, the Court reaffirmed this reading in Dougherty
County, Georgia, Board of Education v. White, stating that “once a State has been designated for
coverage, [the statutory definition] has no ‘operative significance in determining the reach of §
5.’”44 Later, in City of Rome v. United States, the Court took a different direction.45 The Court
ruled that a city attaining the statutory definition was not a political subdivision for bailout
purposes because the city was located within a covered state that was not itself entitled to
bailout.46 This decision made the term more restrictive than its statutory definition.
Hence, as illustrated in the cases above, the term “political subdivision” has been both
over- and under-applied in reference to its statutory definition.47 In 1982, City of Rome was
overturned in part by an amendment to the bailout provision which declared that jurisdictions
35
See generally 42 U.S.C. § 1973b (2008).
For the 2006 extension, see Pub. L. No. 109-246, §§ 3(d)(2), (e)(1), 4, 120 Stat. 580. Over time, the Act has
remained largely the same; however, it is important to note that the baseline for 2006 coverage has stalled out at
1972. See 42 U.S.C. § 1973b(b) (2008).
37
Id. § 1973b(a)(1)(A).
38
Id. § 1973l(c)(2).
39
Id.
40
Id.
41
Lawson v. Suwanee Fruit & S.S. Co., 336 U.S. 198, 204-05 (1949).
42
435 U.S. 110, 114-15 (1978).
43
Id. at 122.
44
439 U.S. 32, 44 (1978) (quoting Sheffield, 435 U.S. at 126).
45
446 U.S. 156, 168-69 (1980).
46
Id.
47
See id.
36
31
within covered states could seek bailout.48 However, this amendment eventually ran into its own
problems.49
III. NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE V. HOLDER
A. Majority Opinion
In Northwest Austin, the majority began its opinion by stating that the district was eligible
for bailout under the Voting Rights Act.50 Therefore, the Court concluded that it would not reach
the issue of section 5 constitutionality.51
Prior to its substantive discussion, the Court put the case in context by providing a
historical background of the issues.52 After confirming that the Fifteenth Amendment granted
Congress the power of enforcement, the Court turned to the Voting Rights Act.53 Then, after
tracing the background of the Voting Rights Act, the Court turned to address the district’s
complaint.54
The Court started by reversing the district court’s ruling.55 In doing so, the Court
overturned the district court’s conclusion that section 5 was constitutional; however, this result
bore from procedure rather than merit.56 Seeming to recognize this, the Court went on to address
the constitutional issue despite having dismissed it as possible grounds for the Court’s decision.57
The Court praised the Act’s achievements; however, the Court also recognized that section 5
“impose[d] substantial federalism costs” and went far “beyond the prohibition of the Fifteenth
Amendment.”58 Although these negative attributes were previously justified, the Court pointed
out that some of the conditions it had relied on in earlier decisions had since improved.59 In
effect, the Court took the chance to assert its belief that “things have changed in the South,” and
past success alone could not continue to justify the preclearance requirement.60 Still, based on
the principle of constitutional avoidance, the Court chose to settle the section 4 bailout issue
48
Pub. L. No. 97-205, § 2(a)-(c), 96 Stat. 131-33 (codified as amended at 42 U.S.C. § 1973b(a)(1)).
See DEP’T OF COMMERCE, supra note 34.
50
129 S. Ct. 2504, 2508 (2009).
51
Id. The Court stated that its “usual practice is to avoid the unnecessary resolution of constitutional questions.” Id.
52
Id. at 2508-09.
53
Id. at 2509. Here, the Court outlined the problems that the Voting Rights Act sought to address and identified the
preclearance requirement as a major contributor to the success of the Fifteenth Amendment. Id. After this
acknowledgement, the Court conceded that both the section 5 preclearance requirement and its companion, the
section 4 bailout provision, were intended to be temporary provisions; however, the Court went on to note their
continued reauthorizations. Id. at 2510.
54
Id. at 2510.
55
Id. at 2508, 2510-11.
56
Id. at 2511. As mentioned, the Court did not reach the issue because of the principle of constitution avoidance.
Id. at 2513.
57
Id. at 2511-14.
58
Id. at 2511 (internal quotations omitted).
59
Id.
60
Id.
49
32
rather than tackle the broader constitutional question.61 While the Court declined to resolve the
issue, it still indicated that the preclearance requirement raised serious constitutional questions.62
Turning to the statutory issue, the Court premised its discussion on the fact that the
district was a political subdivision by normal definitions.63 However, the Court also admitted
that when viewed in isolation, the district likely would not meet the statutory definition.64
Against this, the Court persuasively reasoned that “we do not write on a blank slate.”65 The
Court went on to describe the historical slate of “political subdivision” as used within the Voting
Rights Act.66
Immediately, the Court noted that case law showed the term did not always match its
express definition.67 Next, it established that all units in covered jurisdictions were required to
comply with preclearance obligations despite the statutory language.68 Continuing, the Court
pointed out that “political subdivisions” within covered jurisdictions were now eligible for
bailout.69 From this, the Court adopted a symmetrical view of sections 4 and 5, finding that if all
political subdivisions were subject to preclearance then all political subdivisions should be
eligible for bailout.70 Backed by this belief, the Court ultimately held “that all political
subdivisions—not only those described in the [Act]—[were] eligible to file a bailout suit.”71
B. Justice Thomas’s Opinion Concurring in the Judgment in Part and Dissenting in Part
In his opinion, Justice Thomas seconded the majority’s constitutional concerns, but
unlike the majority, he would have held that section 5 was unconstitutional.72 First, Justice
Thomas attacked the majority’s reliance on the doctrine of constitutional avoidance.73 He argued
that the district sought relief in the form of bailout entitlement rather than bailout eligibility.74
Thus, he argued that defining the district as a political subdivision would not provide the district
with full relief; therefore, it would not have entirely disposed of the case on a non-constitutional
ground.75 Additionally, Justice Thomas noted that the majority’s interpretation did not by itself
render section 5 constitutional.76 Hence, he argued that the court’s decision was not based on the
traditional avoidance scenario where a court must choose between two plausible interpretations,
61
Id. at 2511-13. The Court ended its constitutional discussion by addressing Justice Thomas’s argument in
opposition to the majority’s reliance on the principle of constitutional avoidance. Id. at 2513. There was
disagreement regarding the exact relief sought. See supra note 6. Ultimately, this interpretation was crucial to
settling the constitutional decision. Northwest Austin, 129 S. Ct. at 2513.
62
Id.
63
Id. at 2514.
64
Id.
65
Id.
66
Id.
67
Id. at 2515.
68
Id. at 2514-15.
69
Id. at 2516.
70
Id.
71
Id. The Court was also convinced that lack of bailout success indicated a system that Congress did not intend. Id.
72
Id. at 2517 (Thomas, J., concurring in part and dissenting in part).
73
Id. at 2517-19.
74
Id. at 2517.
75
Id. at 2517-18. This is what the majority purports to do. Id. at 2513 (majority opinion).
76
Id. at 2518 (Thomas, J., concurring in part and dissenting in part).
33
one constitutional and one unconstitutional.77 Further, Justice Thomas asserted that the strict
bailout requirements may very well be unconstitutional; therefore, ruling for bailout entitlement
might not even settle the constitutional issue.78
Justice Thomas ended his opinion by reasserting his belief that it was necessary to resolve
the constitutional issue.79 Noting the success of the Voting Rights Act, he reiterated the
majority’s concern that section 5 prohibited much more than the Fifteenth Amendment
addressed.80 He identified the costs associated with this encroachment and argued that the
constitutionality of the Fifteenth Amendment has always depended on the proven existence of
intentional discrimination that would render a case-by-case analysis impossible.81 Next, he
argued that evidence of this discrimination no longer existed, and its absence undermined any
basis for retaining section 5.82 Ultimately, Justice Thomas concluded that acknowledging the
unconstitutionality of section 5 would represent a victory rather than a sign of defeat.83
IV. DISCUSSION
The Supreme Court, in deciding Northwest Austin, took the well-trodden path of
constitutional avoidance.84 Hence, at first glance, this decision seems to indicate an opinion
lacking in much precedential value. Indeed, the Court interpreted the Voting Rights Act to
render all political subdivisions eligible for bailout; however, given the extremely low number of
successful bailouts, increased bailout eligibility seems unlikely to result in any significant
increase in bailout entitlement.85 Further, when considering the burden of the preclearance
requirements, this appears to be a nearly impossible bar.86
On the other hand, the Court’s continued adherence to the principle of constitutional
avoidance is of some precedential value. In fact, the interesting thing about this case is that the
further one gets from the majority’s holding, the greater the potential for future impact is. For
example, even as the Court purports to dismiss the constitutional issue, it seems to quietly lay the
groundwork for a constitutional challenge of section 5.87 The Court goes beyond its holding,
noting that conditions once justifying the Act have changed such that its continued existence now
raises serious constitutional concerns.88 Though dicta, this will undoubtedly be addressed as
newly bailout eligible districts run into the reality of bailout entitlement.
The majority’s negative view of the Act gives substantial support to Justice Thomas’s
opinion.89 After all, the Court never attacks Justice Thomas’s constitutional argument; rather, its
77
Id. at 2517.
Id. at 2518-19.
79
Id. at 2519.
80
Id. at 2520.
81
Id. at 2523-24.
82
Id. at 2525-27.
83
Id. at 2527.
84
Id. at 2513 (majority opinion).
85
Id. at 2516; see supra note 34.
86
See Northwest Austin, at 2517-19 (Thomas, J., concurring in part and dissenting in part).
87
See generally id. at 2511-13 (majority opinion).
88
Id.
89
See generally id. at 2511-14.
78
34
refusal to address the constitutional issue is based on internal procedure.90 Based on the fact that
the opinions shared the same constitutional concerns, it seems to reason that if the Court had
adopted either of Justice Thomas’s arguments against applying the doctrine of constitutional
avoidance then the Voting Rights Act would have been constitutionally marred.91
V. CONCLUSION
The Voting Rights Act of 1965 was a congressional backlash against one hundred years
of flagrant disregard for the Fifteenth Amendment. Hugely successful, the Act’s broad federal
reach was upheld in Katzenbach based on “exceptional circumstances.” Despite its success, the
Voting Rights Act was called into question again in Northwest Austin. Following this most
recent clash, the Act remained physically intact thanks to a statutory interpretation entitling all
political subdivisions to bailout eligibility. However, though physically intact, the Act did not
emerge unscathed. In dicta, the majority expressed serious concerns over whether the
exceptional conditions once justifying the Act still existed. Running with these concerns, Justice
Thomas’s opinion went so far as to declare the Act unconstitutional. Ultimately, the principle of
constitutional avoidance prevented the majority from reaching a similar conclusion, but in the
end, the Voting Rights Act might very well be one step away from a well-earned retirement.
Bryan A. Jones
90
91
Id. at 2512-13.
See id. at 2517-27 (Thomas, J., concurring in part and dissenting in part).
35